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Debunking the State of the Union on Infrastructure

How about this for a disastrous trifecta? President Trump was wrong on the facts, misguided in his emphasis and avoided the real issue when he discussed infrastructure last night. In his State of the Union address, Trump took aim at the environmental reviews required before a federal road or bridge can be built. But, despite what the President claimed, it’s federal funding, not public participation or environmental protections, that’s holding back these projects.

Trump offered bogus statistics claiming these reviews are too lengthy, and his administration is dilly-dallying instead of implementing a law that could help him achieve the quicker turn-around he claimed is necessary. It’s tiresome, we know, but consider a few facts:

The problem is money

According to the Republican report of the Transportation and Infrastructure Committee, The Corps of Engineers has over $90 billion in approved, authorized projects—virtually all with completed environmental reviews. With an annual budget of $5 billion; the problem is the missing $85 billion, not NEPA. A Department of Treasury report stated that in a study of 40 infrastructure projects, 39 projects were slowed by a lack of federal funding.

Permit approvals are not causing delays in building infrastructure. Repeated investigations by the Congressional Research Service underscore both that factors other than federal NEPA reviews are the primary cause of project delays, and how better resource allocation at a federal agency can expedite decision making. The report found that:

“Causes of delay that have been identified are more often tied to local/state and project-specific factors, primarily local/state agency priorities, project funding levels, local opposition to a project, project complexity, or late changes in project scope."

The President’s quote relied on the debunked report “Two Years Not Ten Years: Redesigning Infrastructure Approvals”, prepared by Philip Howard for the organization Common Good. The report, according to Congressional Research Service is based on false assumptions, widely inaccurate and unsubstantiated claim. Recent data shows that the average time for an Environmental Impact Statement is closer to 3.6 years not 10 years. For more on how President Trump gets it wrong, check out the environmental permitting section of Trump Lies. That's where NRDC rebuts the president's many false statements about our issues.

NEPA is a necessary step in the process that makes projects better

With an emphasis on "smart from the start" federal decision making, NEPA protects our health, our homes, and our environment. NEPA has empowered the public, including citizens, local officials, landowners, industry, and taxpayers, and demanded government accountability for more than 40 years.

NEPA is democratic at its core. In many cases, NEPA gives citizens their only opportunity to voice concerns about a federal project's impact on their community. When the federal government undertakes a major project such as constructing a dam, a highway, or a power plant, or if a private entity needs a federal permit so it can pollute the air or water, it must ensure that the project's impacts—environmental, economic and otherwise – are considered and disclosed to the public. And because informed public engagement often produces ideas, information, and solutions that the government might otherwise overlook, NEPA leads to better decisions—and better outcomes—for everyone. The NEPA process has saved money, time, lives, historical sites, endangered species, and public lands while encouraging compromise and resulting in better projects with more public support. Our website highlights NEPA success stories that prove this point.

Recent Changes to the NEPA and Permitting Process—Changes that are conflicting and counterproductive

“Streamlining” or, more accurately, “steamrolling” has been an easy, no-cost way to pretend we are addressing delays in project delivery. Because many congressional committees have tried to assert jurisdiction over NEPA, there have been numerous and contradictory changes to the NEPA process made by Congress since 2005. Various bills have shortened public comment periods, changed the statute of limitations to four different time periods depending on the project, limited access to courts, and set up arbitrary deadlines for permit approvals. USDOT-led projects can now fine other agencies that miss deadlines; a provision that makes as much sense as debtors’ prison.

Major changes occurred in October 2015 with the passage of the Fixing America Surface Transportation Act (The FAST Act). Title 41 of that bill, mandated a new inter-agency administrative apparatus called the Federal Infrastructure Permitting Improvement Steering Council—largely controlled by the Office of Management and Budget (OMB)—to set presumptive deadlines, push the resolution of interagency disputes, and allocate funding and personnel resources to support the overall decision-making process.

President Trump’s first Infrastructure Permitting Executive Order—as the chief Senate sponsors, Senators Portman and McCaskill wrote in a letter to the President—contradicted authorities and responsibilities already in FAST-41, to the consternation of project sponsors that were already participating in the permitting board’s existing process and found this changed caused the process to slowdown.

Congress and the White House further complicating the process

Despite enactment of this legislation in 2015 and other recent changes to NEPA, this Congress has seen many bills introduced in both chambers that would further amend the NEPA process without regard for their impact on process changes already made in FAST-41. Rather than simplifying current processes, these bills would create new conflicts, sow confusion, and delay project reviews.

Legislation has reached the House floor that would establish new and different and inconsistent permitting and NEPA processes for hydroelectric power projects, water supply projects, natural gas pipelines, international pipelines, fisheries and timber management, and other projects. Besides threatening our environment and natural heritage adopting new measures now would exacerbate effective administration of existing law. For example, USDOT’s Inspector General confirmed the agency has been hamstrung by repeated policy changes in recent Congresses. Although USDOT had completed most of the reforms mandated by MAP-21 in 2012, the Department was forced to delay implementation of others because they had to be revised to comply with additional requirements of the FAST Act.

The President’s statements are more of the same. Pretending we can have more infrastructure while weakening environmental protection and giving developers carte blanche to run roughshod over protections. We can not “streamline” our way to new infrastructure.

What should a new infrastructure bill do?

Last spring, NRDC released 21st-century infrastructure principles that we believe would produce real benefits to the nation. A real infrastructure program needs, to take into account the threats from climate change and build resilient and energy efficient that improve the quality of life with a plan attuned to the needs of the 21st century. We can do this smarter and better—by using—not crippling, the environmental review process. These principles that are detailed on our website.

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Rather than address the need for dollars to build our water, transportation and other failing infrastructure, Congress blames the requirement to evaluate the environmental and community impact of a project, as the major reason for project delays.

Perhaps more so than any other environmental law, the National Environmental Policy Act ensures critical protections not only for our public health, safety, and environment but also for public participation, transparency, and government oversight.